No Will, No Marriage: A Kingston Partner Left Out of the Estate

The situation

Kavya and Tomasz had been together for nine years, the last six of them raising their daughter Zofia in a house in Kingston that Tomasz had bought before they met. Kavya worked as a bookkeeper for a handful of small local clients. Tomasz cut hair, renting a chair at a salon and building a loyal client list of his own. Between them they covered the mortgage, the car payments, and Zofia's daycare, splitting the load the way most couples do without ever writing anything down. They had talked, more than once, about getting married and about getting wills. Life kept getting in the way, and neither had happened. Tomasz collapsed at work from a sudden cardiac arrest and died at 38. He left no will.

In the weeks after the funeral, Kavya assumed the house, the joint bills, and the modest savings they had built together would simply carry on as they always had. A conversation with the bank about the mortgage made clear that nothing about her situation was simple. The house was in Tomasz's name alone. So was his RRSP. So was the truck. The joint chequing account they used for groceries held only a small float, since most of Tomasz's income sat in his own savings account. Legally, none of it was hers, and she had no idea what came next or who was even entitled to make that decision.

The legal problem

Ontario's intestacy rules — the default distribution scheme that applies whenever someone dies without a valid will, set out in the Succession Law Reform Act — divide an estate among a surviving spouse and children. The trouble for Kavya was in how the statute defines "spouse" for that purpose: it means someone who was legally married to the deceased. Cohabiting for nine years, sharing a home, and raising a child together does not qualify. Because Tomasz and Kavya were never married, Kavya was, for the purpose of dividing his estate, a legal stranger to it.

With no spouse recognized under the intestacy rules, the entire estate passed to Tomasz's only child. Zofia, at six years old, became the outright owner of the house, the RRSP, the truck, and every dollar in Tomasz's bank accounts — roughly $430,000 net of his modest debts once the funeral costs and a small line of credit were paid. A child cannot hold property outright, so the law does not let a six-year-old simply take control of a $430,000 estate. It has to be administered for her, under supervision, until she turns 18.

That created two separate problems. First, someone had to be formally appointed to administer Tomasz's estate — a Certificate of Appointment of Estate Trustee Without a Will, the legal authority needed to deal with his assets — and because Kavya had no entitlement to a share, she was not automatically first in line to apply for it. Second, even once an estate trustee was in place, using estate funds to support Zofia's day-to-day life, or letting Kavya and Zofia keep living in a house that legally belonged to a child, required court involvement rather than a simple family decision. Meanwhile Kavya, who had built her adult life around a household run on two incomes, was facing the mortgage, the utilities, and Zofia's expenses on one.

What we did

1. Applied for Kavya's appointment as estate trustee. The other people who could have claimed priority to administer Tomasz's estate — his parents — had no interest in taking on the role and were willing to formally step aside. With their consents in hand, we applied for Kavya's appointment as estate trustee without a will, giving her the legal authority to gather Tomasz's assets, pay his debts, and eventually distribute what remained to Zofia.
2. Filed a dependant's support claim on Kavya's behalf. The Succession Law Reform Act does something the basic intestacy rules do not: it lets a court order support to be paid out of an estate to a "dependant" of the deceased, and its definition of dependant is broader than the definition of spouse used to divide the estate itself — it can include a common-law partner the deceased was supporting, or was under a legal obligation to support, immediately before death. Nine years of cohabitation, a shared home, and Tomasz's role as the family's higher earner gave Kavya a genuine claim to be treated as his dependant, separate and apart from Zofia's automatic inheritance.
3. Arranged for Kavya's appointment as Zofia's guardian of property. Because Zofia's inheritance exceeded the amount a parent can simply hold informally for a child in Ontario, we applied to have Kavya appointed as guardian of Zofia's property, with the court setting conditions on how those funds could be used and reported on until Zofia's eighteenth birthday.
4. Negotiated a settlement instead of a contested hearing. With Tomasz's parents supportive of Kavya and Zofia rather than adversarial, we used the dependant's support application to negotiate a division of the estate directly, rather than litigating it before a judge. That kept costs down and reached a resolution in months rather than the year or more a contested hearing could have taken.
5. Structured the settlement around the home, not just the cash. Selling the house to divide the proceeds would have uprooted Zofia and erased the one asset most likely to grow in value for her. We built the settlement so the house stayed in her trust, with Kavya permitted to continue living in it as her guardian, while liquid estate assets were split to give Kavya immediate support and Zofia a separate fund held for her future.

The outcome

The settlement approved by the court kept the Kingston house, worth roughly $350,000, in trust for Zofia, with Kavya named as trustee and permitted to continue living there with her daughter rather than facing a forced sale. About $30,000 of Tomasz's savings and RRSP proceeds were set aside in a separate trust for Zofia, to be released for her benefit as she grows up and to be paid out to her once she reaches adulthood. The remaining roughly $50,000 was paid to Kavya directly as dependant's support, recognizing the years she had spent as an equal partner in a household the law otherwise refused to see.

None of this happened automatically, and none of it happened quickly — the estate was not fully settled for close to a year. But the strategy worked. Kavya kept her home, kept her daughter's future secured in a properly supervised trust, and received formal recognition and financial support in her own right, all without the family having to sell the house or fight a contested hearing in court. What began as a case where the law treated a nine-year relationship as if it had never existed ended with that relationship formally acknowledged and provided for.

What you can learn from this